Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers

Abstract

This paper presents findings from an ethnographic study investigating the everyday reality of legally aided criminal defence. This is the largest survey of its kind for fifteen years since two competing accounts clashed in this journal. In order to update understanding of this branch of the profession, participant observation and formal interviews are utilised to elucidate something of the health of the lawyer–client relationship as it currently stands. The results challenge the prospect of achieving access to criminal justice, as lawyers degrade their clients. However, this is deemed to be caused by a misalignment of values that might be rectified if lawyers are encouraged to become more ethically self-aware.

Acknowledgements

This research was conducted though the University of Bristol School of Law. I would like to express my gratitude to Richard Young and Michael Naughton for their advice and support in preparing the original PhD thesis that this paper draws upon. I also want to thank Richard Young, Rhian Wilson and the two anonymous reviewers for their comments on an earlier draft of this paper. In addition, I must note that I fully appreciate the lawyers and clients who ensured that this research went so smoothly. This work was supported by the Economic and Social Research Council [PTA-031-2006-00092].

Notes

These firms were selected as the three largest in the area, with the strongest reputations amongst clients. Each firm focused primarily upon criminal work but also conducted small amounts of civil matters. Two firms had ten criminal lawyers, one firm had nine and each firm sent lawyers to the police station, Magistrates' Court and Crown Court.

It should be noted that this research was very fortunate to find lawyers and clients who were extremely welcoming and co-operative, time and again agreeing to the presence of a researcher at often stressful and frequently delicate moments. From my membership of a local criminal justice campaigning group, I was in touch with a lawyer who used to work at one of the firms. He helped me to gain access and, then, once within the legal community, I managed to ingratiate myself with other lawyers who duly granted me access to their firms.

This approach is epitomised by the Chicago School and work such as Hughes (1958).

Though this was the most common firm found in their research, they also encountered lesser numbers of other types of firm which were premised upon differing organisational practices, namely, classical, managerial and political.

This firm was broadly comparable to McConville et al.'s (1994) political firm.

For a fuller discussion of the implications of the New Labour approach to legal aid, see Hynes and Robins (2009, pp. 33–59).

These debates were later ignored and the status quo taken for granted in the final report (Law Society, 2010b). The only issue they were interested in exploring was funding.

Of course, this raises tantalising questions such as, how can lawyers' accounts of their work differ so markedly from what they actually do? Regrettably, space constraints prevent a fuller examination being pursued here but it should be noted that the data collected for this study lend themselves to further analysis of this gap in reference to Freudian psychoanalysis and, in particular, the neurosis of rationalisation. These will be dealt with in future expositions.

Though they subsequently took a more critical turn, as visible in Larson (1977).